Smti. Priya Minj v. The Andaman And Nicobar Administration And ANR.

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE AJOY KUMAR MUKHERJEE WPA No. 238 of 2019 SMTI. PRIYA MINJ ... PETITIONER

Versus

THE ANDAMAN AND NICOBAR ADMINISTRATION AND ANOTHER ... RESPONDENTS For the petitioner : Mr. K.M.B Jayapal For the respondents :Mr. Shatadru Chakraborty Mr. Ramendu Agarwal Heard on : 22.08.2022 & 24.08.2022 Judgment on : 26.08.2022 AJOY KUMAR MUKHERJEE, J.

1.

Being aggrieved and dissatisfied by the inaction and nonaction of the respondent authorities in failing to take appropriate steps to release the salary of the petitioner from the month of January 2018 till she was discharged on 26.10.2018, the petitioner preferred the instant application. 2.

The petitioner contended that sometimes in the month of February 2015, on the basis of a walk in interview the petitioner was appointed for the post of Section-in-charge (General) under the Andaman and Nicobar Islands Medical Education and

Research Society, Directorate of Health Services, Andaman and Nicobar Administration, on a consolidated pay of Rs. 40,000/- per month. The appointment was for one year but subsequently by office Order No. 225 dated 17.05.2016 the period was extended for another one year at an increased rate of monthly salary or Rs. 42,000/- per month and subsequently there was further extension for a period of three months with effect from 17.02.2017 to 16.05.2017 and lastly by an order dated 24.07.2019, the tenure of the writ petitioner was extended for another nine months with effect from 17.05.2017 to 16.02.2018.

The writ petitioner was transferred from procurement cell to Admission Cell and simultaneously one Nazir Hussain Head Clerk was entrusted to look after the duties of in-charge procurement section in addition to his own duties with immediate effect. On 27.09.2017 the petitioner was allocated with the Section-in-charge job in addition to her own duties at Admission Cell and subsequently one Manoj Kumar, HGC was allocated with in-charge, store section and at the same time the writ petitioner was also assigned to assist the store in-charge in addition to her own duties at Admission Cell. 3.

To the utter surprise of the petitioner, the Director Andaman and Nicobar Islands Medical Education and Research Society, on 15.11.2017 issued a memo to the writ petitioner whereby it was brought to her notice that Audit Department

found deficiency in the stock which was assessed to the tune of Rs.1,00,14,562/-. The writ petitioner on 21.11.2017 submitted her reply as against the memo dated 15.11.2017 wherein she has in a clear terms informed such authority about no involvement in any deficiency so detected for any value. By office order dated 26.10.2018 the petitioner was informed that she has been discharged from her duties with effect from 26.10.2018.

4.

The respondent authorities withheld the monthly salary of the writ petitioner with effect from January 2018 to 26.10.2018 amounting Rs.

4,47,467/-.

The petitioner made representation on 31.07.2019 requesting the Director to take necessary steps to release arrear salary, but the respondent authorities has not disposed of such representation till now. She was discharged without giving her any opportunity of hearing. Being aggrieved by the said order the petitioner preferred this writ application. In this context the petitioner relied upon judgement reported in 1997 (3) SCC 261 (L. Chandra Kumar vs Union of India and others).

5.

Mr. Shatadru Chakraborty, learned counsel appearing on behalf of the respondent has raised preliminary objection in connection with the maintainability of the writ application. Mr. Chakraborty has referred the judgement reported in 1999 (3) Mh.L.J. (Marathwada Sarvashramik Sangathan vs. State of

Maharashtra and others) and contended that even the daily rated casual labourers appointed by various departments of State irrespective of the fact whether there are permanent sanction posts available or not, all the disputes either regarding regularisation of service, permanency in employment, payment of wages on the principle of equal pay for equal work or at the rate prescribed under the Minimum Wages Act or continuances of employment falls within the ambit of "service matter" as defined under Section 3 (q) of the Administrative Tribunals Act, 1985.

6.

Mr. K.M.B. Jayapal, learned counsel appearing on behalf of the petitioner in reply submits that petitioner's case is guided under Central Civil Services (Temporary Services) Rules, 1965 and in case of illegal termination, the remedy lies to the petitioner before the Hon'ble Court under Article 226 of the Constitution of India, as it involves question of petitioner's livelihood guaranteed under Article 21 of the Constitution of India.

7.

From the facts and circumstances of the case, it appears that there are certain peculiarities in the case. Respondent No.2 issued a show cause notice to petitioner on 15.11.2017, directing the petitioner to submit her reply for the deficiency of stores, as per audit report within 3 days from the date of receipt of the memo, as to why disciplinary action should not be

initiated against, her. It further appears that she gave a reply to that letter on 21.11.2017. However the peculiarity of the case in that by office order dated 26.10.2018, petitioner was given expost facto approval for extension of the contract period of petitioner from 17.02.2018 to 26.10.2018 as per the terms and condition of initial appointment order. But in continuation of same sentence in said order, petitioner was discharged from her duty w.e.f 26.10.2018 (AN). Accordingly as basis of such discharge is not known to the petitioner, so she submitted representation on 31.07.2019 before Respondent No. 2, stating that she has been terminated without any reason and also for release of her arrear salary accrued before termination. 8.

Further peculiarity of the case is that inspite of that office order dated 26.10.2018 whereby post facto approval for extension was given from 17.02.2018 26.10.2018, Respondents in their affidavit in opposition stated in paragraph 16 that the service of petitioner was not extended beyond 16th February, 2018. In the same paragraph it is further averred that the petitioner was not in service from January 2018 to October 2018. However it is stated in said paragraph that petitioner was further informed that if there is any due pending against the petitioner, shall be paid to the petitioner after enquiry regarding shortage of the materials of the store concerned, where the petitioner was posted.

9.

Since no decision has yet been communicated to the petitioner by the respondent/authority in response petitioner's representation dated 31.07.2019, this court is of considered view that the interest of justice should be sub-served, if the concerned respondent is directed to take a decision on the petitioner's representation dated 31.07.2019 within a specified time frame.

10.

In view thereof, WPA/238/2019 is disposed of by directing respondent No.2 to consider the representation of the writ petitioner dated 31.07.2019 and to dispose of the same by passing a reasoned order in accordance with law after giving an opportunity of hearing to the writ petitioner and thereafter communicate the reasoned order to the writ petitioner. The entire exercise shall be completed within a period of eight weeks from the date of communication of this order. 11.

It is however made clear, that I have not gone into the merits of the case and concerned respondent will be free to decide the aforesaid representation in accordance with law. All points are kept open to be decided by the concerned respondent/authority.

12.

There shall be no order as to costs.

13.

Urgent photostat certified copy of this order, if applied for, shall be supplied to the parties upon compliance of all formalities.

(AJOY KUMAR MUKHERJEE, J.)